By Holly Hayes In May, we wrote about Dr. Donde Plowman’s presentation in Austin where she spoke about the opportunity leaders have to create organizations where innovation can occur. One aspect of innovation in organizations, she believes, is the presence of conflict. So often, leaders are responsible for reducing conflict, but Dr. Plowman argues, conflict often results in innovation. She states, perhaps conflict in the organization means there is life in the organization. For more on Dr. Plowman’s research on how organizations change, read here. Dr. Plowman is Professor in Business and Department Head at the University of Tennessee. On this same topic, mediate.com posted a video of David A. Hoffman talking about “conflict being good in that it brings about change. While conflict can be scary, it can also have positive outcomes.” See his video here. David is a mediator, arbitrator, and Collaborative Law attorney at Boston Law Collaborative, LLC. A Nurses First article titled The Cost of Avoiding Conflict by Diane E. Scott, RN, MSN gives an example of how one nurse avoided conflict in the workplace: As a night shift charge nurse, I would dread working with a particular co-worker because of her negative attitude. She frequently complained about her patient assignment and rarely offered to help other nurses. I finally got to my breaking point and requested a transfer to another shift rather than work with her again. Rachel, RN. The article reviews a study called Silence Kills that demonstrates how avoiding conflict can have negative results. The study was conducted by Vital-Smarts and The American Association of Critical-Care Nurses (Maxfield, Grenny, McMillan, Patterson, & Switzler, 2005). Ten percent of the healthcare professionals who took the survey stated that when they do address their concerns, they feel the outcome is improved performance and improved teamwork with their coworkers. When healthcare staff can learn to manage conflict well, they can become more effective in creating healthy environments for themselves and for their patients. While learning conflict resolution skills can require unlearning some practices and reaching outside a staff member’s comfort zones, the result can be greater personal and professional growth. Ten percent of the healthcare professionals who took the survey stated that when they do address their concerns, they feel the outcome is improved performance and improved teamwork with their coworkers. When healthcare staff can learn to manage conflict well, they can become more effective in creating healthy environments for themselves and for their patients. While learning conflict resolution skills can require unlearning some practices and reaching outside a staff member’s comfort zones, the result can be greater personal and professional growth. We welcome your comments on the positive results of conflict. Holly Hayes is a mediator at Karl Bayer, Dispute Resolution Expert where she focuses on mediation of health care disputes. Holly holds a B.A. from Southern Methodist University and a Masters in Health Administration from Duke University. She can be reached at holly@karlbayer.com.

By Kent B. Scott and Cody W. Wilson The success of mediation is mainly determined by the parties. It is their process and they are in control of the ultimate result. While there is no guarantee that any mediation will succeed, there are some common elements found in successful mediations: The mediator selected by the parties had the skills, knowledge and style (i.e., evaluative or facilitative) that fit the dispute and personalities involved in the mediation. People with knowledge of the dispute and others with authority to settle on each side’s behalf were present at the mediation. The parties exchanged enough information to be able to understand the positions and perspectives of the other. The attorneys and the party representatives were well prepared to mediate. The parties identified their respective needs and interests and formulated proposals that would satisfy the interests of each participant. The mediator, the parties and their attorneys were committed to making the mediation work. They did not give up on the process too early and were willing to explore all available avenues and options. Conclusion Mediation is very effective in helping parties settle all kinds of disputes. But to work, the parties must remain flexible and avoid “drawing a line in the sand.” Nothing brings the mediation to an impasse quicker than focusing on the “bottom line” approach. The parties select the mediator they want to serve as a catalyst in negotiations. The parties control the ultimate outcome. The questions and answers presented here identify the information parties need to know in order to decide whether to mediate, as well as the information they need to know to be prepared to engage effectively in mediation. The parties’ reactions to this information is highly germane to the means and methods that will be used in the mediation. Thus, after learning the client’s reactions and their preferences for the mediation, counsel should convey this information to the mediator so that they can design the appropriate mediation protocol. Mediators should also be interested in the questions that parties ask their counsel about the mediation process so that they can be aware of unstated concerns in private caucuses. [Ed. note: the contents of this post were first published on a different form in the May/July 2008 Edition of the AAA Dispute Resolution Journal.] Kent B. Scott is a shareholder in the law firm of Babcock Scott & Babcock in Salt Lake City whose practice focuses on the prevention and resolution of construction disputes. As a mediator and arbitrator, Mr. Scott currently serves on the AAA’s panel of mediators and the AAA’s Large Complex Construction Case Panel. He also serves on the arbitration and mediation panels for the U.S. District Courts (District of Utah), State District Court (Utah) and Utah Dispute Resolution. Mr. Scott is a founding member of the Dispute Resolution Section of the Utah Bar and a Trustee for the Utah Council on Conflict Resolution. Cody W. Wilson is an associate in the law firm of Babcock Scott & Babcock, concentrating his practice in the area of construction law, is licensed in all courts in the State of Utah, the U.S. District Court of Utah, the 10th Circuit Court of Appeals, the U.S. Court of Federal Claims and is a member of the ABA Forum on the Construction Industry. They can be reached at kent@babcockscott.com and cody@babcockscott.com. ?

Peter S. Vogel, trial partner at Gardere Wynne Sewell LLP and contributor of this blog will host “Social Media: eMail, SPAM, Spyware, and Phishing,” a State Bar of Texas Webcast on Wednesday, July 28th 12:30-1:30pm CST. DESCRIPTION: The Internet has transformed communications as evidenced by the current estimate that over 210 billion emails are sent daily, 50 million tweets are sent daily, and over 1.5 trillion text messages were sent in 2009. So the impact of SPAM and Phishing has never been greater, and undoubtedly will continue to grow. Botnets and Spyware are omnipresent as they are integrated into the billions of emails sent each day. Without question Social Media has had a significant impact on Internet users on the likes of Facebook, MySpace, YouTube, LinkedIn, Yelp, and dozens of other Internet sites. This webcast will explore issues that confront all lawyers and clients in 2010 and the future. Find out more here. Technorati Tags: law, ADR, arbitration

By William G. Whitehill In In re Merrill Lynch & Co., Inc. and Merrill, Lynch, Pierce, Fenner; Smith Incorporated, __ S.W.3d __ (June 25, 2010 slip op.), the Texas Supreme Court conditionally granted mandamus relief in favor of Merrill Lynch, staying litigation against it by a non-signatory company when that company’s sister company that was a signatory to an arbitration agreement was also asserting identical claims that were potentially subject to a class action carve out from its arbitration agreement with Merrill Lynch, the defendant in both cases. The signatory company had been a party to a class action suit that was dismissed. The possibility remained, however, that the class action could be revived. Until that issue was resolved, it would not be possible to determine whether the signatory’s claims would be required to be arbitrated. If the signatory’s claims were to be arbitrated (i.e., there was no class action), the non-signatory’s suit could not proceed until after the arbitration. (Conversely, if the signatory’s claims were to proceed in a class action, the carve out would apply and the non-signatory could proceed with its litigation proceeding.) In so holding, the Texas Supreme Court relied on its prior decision in In re Merrill Lynch Trust Co., 235 S.W.3d 185, 195 (Tex. 2007) in which it held that where “the same issues must be decided in both arbitration… and in court … the latter must be stayed until the former is completed.” In so holding, the Supreme Court further held that when an issue is pending in both arbitration and litigation, the Federal Arbitration Act generally requires the arbitration to go forward first; arbitration ‘should be given priority to the extent it is likely to resolve issues material to this lawsuit.’ This has been the practice in all the federal courts. (footnotes omitted). In the present case, the court observed that the only factual difference from its prior decision was the class action carve out provision and the fact that whether the signatory would participate in a class action suit remained an undecided issue. Nonetheless, the Supreme Court based its mandamus relief on the fact that the class action issue necessarily would be resolved in the future and that protecting Merrill Lynch’s bargained for arbitration right took priority over the non-signatory’s desire to proceed with its litigation claim. Both cases reflect the trend among the majority of U.S. courts to enforce arbitration agreements based on traditional contract law principles. William G. Whitehill is a trial partner at Gardere Wynne Sewell LLP. Mr. Whitehill has represented an offshore drilling contractor, a national pipe and fittings foundry, a food products manufacturer, a natural gas producer, and other companies in substantial antitrust claims. Mr. Whitehill has also represented a plaintiff’s class in a successful trial and appeal of substantial pension benefit claims. He holds a B.B.A. in Finance from The University of Texas at Austin and a J.D. from Southern Methodist University. Mr. Whitehill may be reached at bwhitehill@gardere.com.